Page 440 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
Other European jurisdictions approached similar cases differently. Under the BGB 2002, buyers of non-conforming things appeared not to be tied to the limitation of the remedy for non-conformity. Where the facts constituted a case of delict or deliberate concealment, buyers could bring a remedy over a longer period than the one stated in the code for remedies for non-conformity (8.3.1). In the same vein, the expiration of the remedies for breach of the duty to safeguard from latent defects did not dismiss French Courts from exploring whether the facts of the case perhaps constituted non-performance (8.4).
The pending Proposal for a reform of the Spanish Código civil differentiated between remedies aimed at curing the non-conformity itself and those for price reduction, rescission, and damages based on loss suffered due to the non-conformity, irrespective of whether or not the seller had managed to cure the non-conformity. However, it remained unclear whether the Proposal assigned the general five-year limitation to these remedies, which does not begin to run before the buyer becomes or should have become acquainted with the facts which gave rise to his claims, or the shorter periods for claims to cure non- conformity (8.5.1).
Contrary to the drafters of the Proposal for revision of the Código, the drafters of the ABGB in 1811 had explicitly opted to separate the remedies for curing a breach of safeguarding duties and claims for damages due to breach of the giver's duty to safeguard the delivered thing free from defects, encumbrances, and third-party claims. As a result, there were no doubts about whether a recipient retained his claims for damages resulting from fraud, error or delict, also if the remedies for curing the breach which had caused those damages had expired. The drafters of the Spanish Proposal would have acted wiser, had they adopted the same approach.
On the whole, the second-oldest of the civil codes treated in this book proved remarkably fit to weather the storms of 20th and 21st century reforms (8.6). The ABGB's traditional dichotomy between safeguarding duties and non-performance was not necessarily problematic. Though similar to other European lawgivers the Austrian legislator had to respond to the demands of Directive 1999/44/EC. Unlike most other codes studied in this chapter, it kept the ABGB's duty of Gewährleistung as a duty different from the seller's duty to perform intact. That this could be done is mainly due to the strong natural law character of the ABGB, which made that Gewährleistung had already since 1811 been defined as a broad, uniform concept, applicable to all contracts in which both parties had to perform. Problems relating to the division between remedies for defects and for third- party claims, and issues concerning overlapping remedies and their respective limitation were largely absent in the ABGB.
As the Austrian civil code has proven to conciliate the best of Europe ius commune- tradition with the demands of the 21st century, it is not surprising that the European Commission's Proposal for a Common European Sales law of 2011 resembles the ABGB in many of the aspects central to this chapter. Similar to the Austrian code, the CESL
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